By summer 2002, the Portland-area media already had found
their criminal Case of the Century in Ward Weaver, the self-proclaimed
lead suspect in the disappearance of two Oregon City girls.

When Weaver was arrested for an alleged assault on his
son’s teen-age girlfriend, a reporter was on her doorstep the next morning.
And when police searched Weaver’s property for the missing girls’ remains,
television stations gave the weekend-long proceeding non-stop coverage
rivaling the assassination of President Kennedy.

But when Weaver began granting interviews from the Clackamas
County Jail, where he is awaiting trial for the missing girls’ murders
and other crimes, trial judge Robert Herndon stepped in. In November
2003, one day after Weaver’s second set of attorneys sought to withdraw,
Herndon issued an order gagging anyone conceivably connected with the
case, including Weaver himself.

Recently, that order — and other aspects of the sometimes-uneasy
interface between journalism and jurisprudence — were the subject of
a symposium on the media and the courts, sponsored by OSB’s Bar Press
Broadcasters Council.

'This is an incredible roomful of power,' says
long-time council member Judson Randall of the Oregon judges, attorneys,
police officers and media representatives who participated in the Portland
symposium on May 8. 'It’s extraordinary to me that they’re willing
to listen to each other.'

Randall says he got the idea for the symposium after hearing
about a particularly aggressive attempt by a TV reporter to interview
one of Weaver’s original attorneys. 'I suggested facilitated discussions
so we could all understand each other better,' says Randall, who
is a retired Oregonian editor. 'It’s amazing what can happen
when a bunch of people who ordinarily have conflicts get together and
listen to each other.'

A similar symposium was held last spring in Portland: The
council tentatively is planning a third for Eugene in 2005.

Topics for this year’s symposium included:

What happens when the constitutional guarantee of a free
press comes in conflict with a criminal defendant’s constitutional right
to trial by an impartial jury? How are trial judges, like Herndon, supposed
to balance these competing interests?

Does it matter whether the media coverage seems geared
more towards entertainment than news?

When police invite TV cameras along for an arrest and interrogation,
can the defense attorney get access to all film shot? Or is his request
trumped by Oregon’s media shield law, which bars disclosure of 'unpublished
information?'

Randall says the media representatives who participate
in the symposiums are discouraged from reporting on them. 'We want
people to just be able to discuss stuff,' he says.

Nonetheless, some of the participants — and others who
have dealt with the media-courts issue — agreed to talk to the Bulletin about
their experiences. They also offered tips to their colleagues for handling
high-profile cases.

The prosecutor’s viewBernice Barnett was an experienced
prosecutor — but a new
district attorney — when the body of Christian Longo’s 4-year-old son
Zachery was found in a Lincoln County slough in December
2001.

The tragic discovery, followed by that of the bodies of
Longo’s wife and two other children, ignited a media firestorm.

'I’d absolutely never had a high-profile case, or
at least not this high profile, and I hope it’s the last,' says
Barnett, who had started as Lincoln County’s district attorney earlier
that year.

Barnett says she coped with the media pressure by focusing
on her goal of getting an error-free conviction.

'We had a really important job to do, and we had to
stay focused,' she says. 'Any time I dealt with any public
aspect of the case, I asked myself, ‘Will it help or hurt the prosecution,
and does it fit the ethical aspects of the bar-press guidelines?’ ' (See 'Statement
of Principles Governing Certain Lawyer-Press-Broadcaster Relationships' on
page 11.) 'Then I acted accordingly.

'It was not our goal to have any publicity,' says
Barnett. 'So when ‘America’s Most Wanted’ wanted me on, I didn’t
go. They taped one of our very fine detectives instead. I got lots of
calls from ‘Good Morning America,’ but I never went on, because it wouldn’t
have helped our case. But when we were still looking for Mr. Longo (who
was arrested in Mexico), I called the FBI and had them do an appearance
(on ‘Good Morning America’), because that was helpful.'

Barnett, who saw Longo convicted of all counts and sentenced
to death, says she talked to other district attorneys, and even a friend
in public relations, before coming up with the following strategies:

Pull out your ethical guidelines on a regular basis.

Have only one spokesperson. Don’t let that person do any
grandstanding to the press.

Set up a special phone line for the media to tell them
what’s happening on the case in terms of procedure. 'For a while,
when everybody was so frantic to know, we even did a daily press release
before the media’s noon deadlines,' says Barnett. 'We tried
to balance respect and courtesy to the press — who really were desperate
to have some information to report — with doing our job.'

Have copies of key documents, such as the indictment, available
for the press as soon as they can be released.

Barnett says she’s aware the press has 'some frustrations' of
its own, such as the Lane County Courthouse’s ban on cameras and tape
recorders. 'And we prosecutors all have our own personalities,' she
says. 'Some of us are more inclined to talk to the press than others.'

A district attorney’s viewIf any district attorney
in Oregon is comfortable with the press, it’s Clatsop County’s Joshua
Marquis.

'I get teased about that a lot,' says Marquis. 'But
an elected official needs to be accountable.'

Marquis’ view of the media, and how it’s changed, recently
appeared in the Los Angeles Times. 'It’s what I call the ‘corruption
of celebrity’ — Michael Jackson, Laci Peterson — which we don’t really
have in Oregon because we don’t have real celebrities,' says Marquis.

But Marquis, who has had several of his trials covered
by television, says he hasn’t seen similarly abusive behavior by the
press in Oregon.

'Reporters here are much more sophisticated (than
in California),' says Marquis. 'Some of them really understand
the nuances: They don’t get bamboozled.'

Marquis’ advice to other prosecutors who are facing high
profile cases?

Be aware of the bar-press guidelines. 'They may just
be ‘guidelines,’ but they should be like the Ten Commandments for the
state,' says Marquis.

Don’t be afraid to explain court procedures to the press. 'Sometimes
prosecutors are overly cautious about not even wanting to explain ‘What
is a bail hearing?’ ‘What is the possible penalty?’' Marquis says.

Note that it’s 'rarely appropriate to make comments
about anything other than court procedures. Never say, ‘We have DNA on
this guy,’' says Marquis. 'I don’t know of any cases in Oregon
where prosecutors have crossed the line,' he adds. 'And it’s
very rare that Oregon defense attorneys try their cases on the courthouse
steps. There are out-of-state lawyers who try that, but you simply don’t
rise to the bait.'

Defense counsel’s viewDefense attorney Stephen Houze
has, in recent years, become the closest thing Portland has to a 'celebrity attorney.' His
clients have included Trail Blazers guard Damon Stoudamire
and auto mogul Scott Thomason.

But Houze says that an attorney who represents celebrities 'can’t
be a self-promoter or a huckster. I feel very strongly about that,' he
says.

Houze says that in his experience, celebrity status can
cut against a defendant, rather than in his or her favor.

'I think it (celebrity) can impact decision makers
in the system,' he observes. 'Celebrity gives the case an artificial
magnitude it otherwise doesn’t deserve. It’s a higher hurdle to get ordinary
treatment. That’s not to say that it happens in every case, but it does
happen.'

Houze, who has been a defense attorney for over 30 years,
says he’s seen a change in how the media covers criminal cases.

'My first case that had — for its time — a very significant
amount of media coverage was the Hockings murder case,' he says.
He is referring to Colin Hockings, who was convicted, at a second trial,
of bludgeoning four people to death with a hammer in 1974. 'Both
TV and print were covering it. I remember one particular Sunday (newspaper)
supplement that was almost New York tabloid-like. People were very surprised
at the kind of coverage that case attracted.'

Since then, however, Houze says, 'I’ve observed that
crime news coverage is a huge phenomenon in this country.'

Despite that, he says, he’s been pleasantly surprised by
the relatively minimal impact media coverage seems to have on prospective
jurors.

'The saturation of the media is not as great as we
think,' he says. 'It’s not as bad as we think in terms of tainting
the process. Which is good, because it’s very, very difficult to get
a change of venue.'

Houze’s advice to other attorneys facing the kind of media
attention he encounters regularly includes the following:

Speak with other attorneys who have had considerable experience
dealing with the media. 'It’s not the kind of experience many lawyers
have had,' Houze points out. 'It’s easy to make a mistake,
either saying too much or too little. The classic ‘No comment’ may have
a very deleterious effect on your case.'

Have a strategy. 'The media are waiting: They’re going
to have to cover something,' he points out. 'So do something
constructive within the bounds of ethics.'

Let the media know you’ll be available for comment at some
point. 'It takes the pressure off the situation immediately,' says
Houze. 'Say ‘No comment’ by my client, but I’ll have a comment later.'

The view from the benchPerhaps no one has given more thought to the issue of the
media and the courts than William Dressel, who served 22 years on the
bench in Colorado before becoming president of the National Judicial
College in Reno, Nev.

According to Dressel, the issue of balancing the press’ First
Amendment rights with a criminal defendant’s Sixth Amendment rights has 'always
been there.

'I would say it’s the media that’s becoming more savvy,' Dressel
told the Bulletin. 'In the past, they wouldn’t question why
a file was sealed or a hearing was held off the record. So judges need
to be prepared.'

One judge who has been through the media wringer is Multnomah
County’s Kimberly Frankel. Recently, she presided over the Ladon Stephens
murder and sexual assault case, in which the state was seeking the death
penalty. The trial began on Jan. 9 — during a major snowstorm — and ended
on March 10 with the jury sentencing Stephens to life without the possibility
of parole.

'It was an interesting experience,' says Frankel,
who has been on the bench almost 27 years but had had only one previous
case attract as much media attention.

According to Frankel, the press’ coverage of the case included 'one
huge misstep:' A television station reporting that the teen-age
murder victim’s and her parents’ personal opposition to the death penalty
had been conveyed to the jury. In fact, the information had been elicited
from the parents in an offer-of-proof hearing outside the jury’s presence.

'I about had a stroke,' says Frankel, who ruled
the testimony inadmissible. Later, a juror who talked to the media despite
Frankel’s admonition said the jury was aware of the broadcast but had
not been affected by it.

Frankel says she also was unhappy to see a day’s proceedings
reduced to several seconds of film, a practice that she believes contravenes
the purpose of allowing cameras in the courtroom. UTCR 3.180.

'What was designed to allow the community to have
access to a trial has become sound bites leading into a news program,' she
says. 'And when you reduce serious, complicated events to sound
bites, it could give the public an inaccurate impression of what’s happened.'

But Frankel says she also understands that reporters and
camera people have frustrations of their own.

'They tell me there’s a huge disconnect with their
managing and assignment editors,' she explains. 'They’re caught
between me, advertising revenue needs and their own (the press’) power
structure. They seem to be getting direction that is a little harmful
to the process.'

Despite these concerns, Frankel says her experience with
the media on the Stephens case was, 'all in all, pretty good.

'In the final analysis,' she says, 'general
human goodwill kept us afloat.'

Frankel has a number of suggestions for other judges facing
a media mega-trial:

Have the ‘big meeting’ before the trial to lay out the
ground rules for the press. 'Basically, you have to treat them as
an additional party in the lawsuit,' says Frankel. 'Have the
lawyers and all the press, including the managing editors who chew on
the haunches of the working press.' Then, she says, put the ground
rules on the record.

Provide the press with copies of the relevant Uniform Trial
Court Rules. Make sure they understand that jurors are not supposed to
discuss their deliberations.

Be sensitive to press deadlines. If possible, delay announcing
the verdict or important rulings until the press has had time to assemble
so their reporting is based on firsthand information.

Discourage the press from calling your office to find out
what happened if they missed part of the proceeding. 'They cannot
play catch up through me or the staff,' says Frankel.

Remember that the trial is 'Job 1. As much as you
want to make the courtroom a welcoming place for everyone, the media
can’t be clacking around, going in and out, going outside the rules,' says
Frankel. 'It is your courtroom, and you’re still the judge.'

Another view from the benchAnother longtime judge,
Lincoln County’s Robert Huckleberry,
who presided over Christian Longo’s trial, came to that case with several
strengths: A style of building consensus, and the experience
of presiding over the trial of former Clatsop County District Attorney
Julie Leonhardt.

'I don’t think the court should ever fear the press,' says
Huckleberry. 'What I learned from (the Longo case) was how willing
they are to work within a set of rules, as long as they knew was the
rules are.

'The overall cooperation I enjoyed from all reporters
in the Longo case cannot be overstated,' he continues. 'Every
time I asked something of the press — every time —I found, to a person,
a willingness to meet me more than halfway.'

In fact, says Huckleberry, the media was 'very much
appreciative' of the rules he set down.

'If you’re a reporter, you’re in competition with
the other guy,' he explains. 'If somebody doesn’t create some
restrictions, you’ll do what you have to do to get the story. I understand
that. What I did was create a level playing field for reporters. And
I would argue that when this challenging case had finally ended, we parted
ways with both the press and court officials feeling and believing that
the natural tension which periodically rears its head in the midst of
cases with high public interest had been addressed head-on, and in such
a way that both sides felt their interests had been adequately and fairly
served.'

Huckleberry suggests:

Have a system for dealing with overflow crowds. 'The
first day, we had people literally stepping over each other to get in
the courtroom,' Huckleberry says of the Longo case. 'We had
bench seating — how many people can crowd onto a bench? — TV cameras,
and (jury) alternates who spilled out of the jury box. So what I did
was call the fire marshal about the number of people allowed on the entire
floor, asked the sheriff’s office to enforce the fire marshal’s order,
and then issued that number of passes.'

Provide a place where reporters who can’t get into the
courtroom can watch the proceedings via video and audio feed. 'That
way, they can get the story without having to compete for that (courtroom)
space,' he says.

Limit the number and timing of photographs that can be
shot in the courtroom. 'A photographer can’t just pop up,' he
says. 'It’s terribly distracting.'

Neither Frankel nor Huckleberry issued gag orders.

As for the gag order in the Weaver case, Herndon told the Bulletin he
could not comment. But Portland attorney Jill Gelineau, who represents
the Portland Tribune, says the media decided against challenging
Herndon’s order. That decision was based on authority from the 9th Circuit,
which she turned to after finding no Oregon case law on the subject.

'This is the situation in a nutshell,' she explains. 'There
is a split of authority on this issue. The 6th Circuit doesn’t draw a
distinction between an order gagging a defendant from speaking and one
gagging the rights of the press to report. The 9th and the 2nd have a
different view.'

In this circuit, a judge who proposes to restrain the press has
to make a finding that that less-restrictive measures would not be sufficient
to protect the accused’s right to trial by an impartial jury. But, Gelineau
says, an order that restrains the parties — including, in the
Weaver case, a talkative defendant — is a different matter.

'I checked the order, and it didn’t prohibit the press
from reporting,' says Gelineau. 'It only prohibited Mr. Weaver
(and others) from speaking. Mr. Weaver could have gone in and challenged
it, but it was not a prior restraint on the press.'

Of course, many lawyers place a voluntary gag on public
commentary, either because of a personal distaste for media coverage,
or because of concern over ethics violations. According to ethics expert
Peter Jarvis, though, the pre-trial publicity rule (DR 7-107) is widely
misunderstood in Oregon and actually allows for more comment than many
lawyers may think. 'The rule is invoked only if the attorney’s comments
create a serious and imminent threat to the fact-finding process, and
that requires a degree of immediacy that would only rarely arise.' He
adds that the rule is rarely invoked, and 'that is unlikely to change,
partly because Oregon lawyers are quite cautious, but also because frankly
it’s a hard rule to violate.'

ONLINE EXCLUSIVE

Judge Herndon’s gag order, dated Nov. 6, 2003, reads:

'This matter comes on before the Court upon the Court’s
own motion regarding contact of the parties, witnesses and attorneys
with the public and media. It appearing to the Court that such contact
may impair the ability of the parties to select a fair and impartial
jury, and it appearing to the Court that such contact should be prohibited
in order to avoid contamination of the jury pool, the Court herewith
ORDERS as follows: Forthwith, Defendant, any witness, and all attorneys
and investigators familiar with the above-captioned matter are prohibited
from granting interviews with any member of the press, either written
or video, and shall further be prohibited from disclosing to the press
or public any of the facts or evidence regarding this matter, and shall
further be prohibited from expressing to the media or public any opinion
on the probable outcome of any portion of these proceedings.'

ABOUT THE AUTHORJanine Robben is a Portland writer and reporter. She has been a member
of the Oregon State Bar since 1980.